AFAIK to violate the GPL they would have to ship ZFS compiled code in the kernel image, but this is not what they are doing.
Similarly, the original code was taken from OpenSolaris and was adapted for Linux. No matter how we change it, it is a derived work of Solaris. Furthermore, it is distributed as part of a mere aggregation, which is okay with OSS under the OSD and also okay with the GPL under the GPL FAQ. The only time you can claim a combined work is formed is when the module is loaded into a running kernel, but the GPL does not restrict non-distribution and the kernel with the module loaded into it is not being distributed.
You can argue that GPL advocates did not intend to support a license that allows any of this. However, I expect that you would have trouble finding an attorney that will interpret what the copyright holder thought the terms said to supersede the legal meaning of the terms unless explicitly stated.
If you make a license for the kernel that does not allow derived works of other platforms' software to be distributed as ports, you would violate #9 of the OSD and could not call it an open source license:
That is analogous to writing a new piece of software intended to be similar to an existing piece of software rather than a port of software under license. Examples of the former include the Linux kernel (meant to be similar to UNIX SVR4) and the wine project (meant to be similar to Windows). If that argument is valid:
1. Oracle is in an excellent position to sue every Linux user not using Oracle Linux, because they own rights to UNIX SVR4, which they inherited from Sun.
2. Microsoft is in an excellent position to sue wine users.
3. James Cameron and 20th century Fox would also be in trouble with Disney for Avatar's similarities to Pocahontas.
4. Probably plenty of other bad things.
However, this argument does not apply to ZoL because the code originated in OpenSolaris and is under license and exists as a discrete module, rather than a whole program.
So far, the only thing that you have concretely stated is that you met some attorneys who were unwilling to make a decision on legality. You are not an attorney (unless you have obtained a bar number since I last asked) and I have yet to hear that anyone with a bar number that agrees with you.
If you want to prohibit people from using software you write with things that you consider to be derivatives when the law does not recognize them as such, you need a license that makes that explicit. Such a license could not be called an open source license under clause #9 of the open source definition:
https://opensource.org/osd-annotated
Consequently, the GPL is definitely the wrong license for that.
I take ZFS from Solaris. I rewrite it to work with Linux. In which sense is this not equivalent to my analogy? The examples you're giving are not equivalent, because in each case the work was written without deriving from the other copyrighted work.
> However, this argument does not apply to ZoL because the code originated in OpenSolaris and is under license and exists as a discrete module, rather than a whole program.
That's an entirely arbitrary distinction.
> So far, the only thing that you have concretely stated is that you met some attorneys who were unwilling to make a decision on legality.
No, I said that lawyers had told me that ZoL was an infringing work but that we wouldn't know for sure unless a court decided on it: http://www.phoronix.com/forums/forum/software/general-linux-...
> If you want to prohibit people from using software you write with things that you consider to be derivatives when the law does not recognize them as such
Nobody wants that.
I take it that you never actually read the ZFSOnLinux source code.
It is not really rewritten. There is a compatibility layer in place to prevent the need to rewrite much of the code and a very small percentage of the original kernel code actually changed to support Linux, but what did change was meant to use for interfaces that are provided by the kernel to allow proprietary modules to be ported, which suggests any license is fine.
However, the claim that writing a brand new TV show script inspired by another forms a derivative work is to claim that writing things from scratch forms a derivative work.
> That's an entirely arbitrary distinction.
It is the distinction lawyers are making.
> No, I said that lawyers had told me that ZoL was an infringing work but that we wouldn't know for sure unless a court decided on it: http://www.phoronix.com/forums/forum/software/general-linux-....
Do you have bar numbers of these lawyers? Is there any reason to think that they were thinking that zfs.ko somehow used GPL exported symbols or some other thing that is not actually true that does not involve taking your word for it? I did have one person going to law school tell me that it was a derivative work because of that. He did not think he could claim otherwise after an explanation that the code does not do that.
Given that your legal views are so incredibly divorced from those of actual lawyers with whom I have talked, I am not inclined to believe you when you say that they had no misunderstanding, especially when it seems that you have never actually read the code to be able to be sure of that.
> Nobody wants that.
Your claims are inconsistent with that.
It has several direct calls into Linux functionality that don't go via SPL, but it's also unclear that simply adding an abstraction layer is a meaningful mechanism to avoid derivation.
> what did change was meant to use for interfaces that are provided by the kernel to allow proprietary modules to be ported
There are no such interfaces in Linux.
> the claim that writing a brand new TV show script inspired by another forms a derivative work is to claim that writing things from scratch forms a derivative work.
I didn't make that claim. The analogy in question involves taking an existing work and modifying it such that it includes components of another work.
> It is the distinction lawyers are making.
It's the distinction a lawyer that you've spoken to is making.
> Do you have bar numbers of these lawyers?
Yes.
> Is there any reason to think that they were thinking that zfs.ko somehow used GPL exported symbols or some other thing that is not actually true that does not involve taking your word for it?
No.
> Your claims are inconsistent with that.
My claim is that I have reason to believe that, under copyright law, ZoL is a derivative work of Linux and as such is subject to the terms of the GPL. If the final legal determination is that it's not a derivative work then the GPL is irrelevant.
I should elaborate that you need the original to be under license. Otherwise, you have a problem.
No, they aren't using a separate Ubuntu package, it's gone straight into the main kernel repo.
> AFAIK to violate the GPL they would have to ship ZFS compiled code in the kernel image, but this is not what they are doing.
You can violate the GPL inside a kernel module that you distribute.
How Ubuntu packages is irrelevant. What matters under the GPL is how the module is linked into the kernel.
> You can violate the GPL inside a kernel module that you distribute.
Of course, but they're not doing that. For example, you could violate the GPL by including GPL'ed code in a kernel module under a more restrictive license.
There's a lot more detail here: http://www.tldp.org/HOWTO/Module-HOWTO/copyright.html
ZFS was originally created for Solaris, and works on multiple operating systems. So ZFS itself is obviously not a Linux derivative. If the original ZFS could be directly linked with the Linux kernel without modifications, it still wouldn't be a Linux derivative.
But ZFS had to be modified to work with Linux. It can be argued that those modifications are Linux derivatives. We haven't had a definitive ruling on this yet.
ZFS from Solaris / BSD --> not a Linux derivative, even if it was directly linked into Linux.
ZFS with trivial modifications to work with Linux --> not a Linux derivative
ZFS with extensive modifications to work with Linux --> judge's ruling required
The only reason that linking matters is because Linus's statement that binary modules are OK would have some weight with the judge. However, Linus is not the only copyright holder of the Linux kernel, and other copyright holders have disagreed with Linus on this statement.